survey of illinois law - southern illinois university school of law

* Assistant Professor of Agricultural Law, University of Illinois, Department of Agricultural andConsumer Economics and Institute for Genomic Biology. This material is based on work supportedby the Cooperative State Research, Education and Extension Service, United States Department ofAgriculture, under Project No. ILLU–470–309. The authors acknowledge the invaluable assistanceof the legislative staff of the Illinois Farm Bureau and the Illinois State Bar Association in trackingand summarizing legislation. In addition, the authors take this opportunity to publicly acknowledgethe truly outstanding research assistance of Stephanie B. Johnson, University of Illinois, J.D. expected2010. Of course all errors and omissions are the sole responsibility of the authors.

** Emeritus Professor of Agricultural Law, University of Illinois, Department of Agricultural andConsumer Economics.

1. The authors acknowledge the assistance of Kevin S.B. Semlow, Director of State Legislation, IllinoisFarm Bureau, and Rae F. Payne, Senior Director of Legislative and Regulatory Affairs, Illinois FarmBureau.

793

S U R V E Y O F I L L I N O I S L A W :CONSERVATION, ENERGY AND FOODDEVELOPMENTS IN AGRICULTURALLAWA. Bryan Endres* & Donald L. Uchtmann**

The field of agricultural law is as vast as the prairie which greeted thefirst settlers of Illinois. The potential vastness of this subject matter creates aspecial challenge when authors attempt to highlight new state developmentsin agricultural law. The approach taken by the authors in this special “Surveyof Illinois Law” issue began by examining a set of laws emanating from theIllinois General Assembly in 2007, including those brought to our attention bythe Illinois Farm Bureau1 and our colleagues on the Agricultural Law SectionCouncil of the Illinois State Bar Association. The authors then searched forgeneral themes under which they could organize the significant new statelegislation related to agriculture and its natural resource base. The result ofthis effort is below. Section I analyzes new legislation grouped under threebroad themes: Conservation, Energy, and Food. Under the Conservationtheme, the authors describe new legislation related to the property taxation ofwoodlands, changes to the Conservation 2000 program, “prescribed burning”of natural areas, and conservation projects supported by the Illinois FinanceAuthority. Under the Energy theme, the authors describe a variety ofalternative-energy legislative efforts, with significant accomplishments in theareas of wind energy, biofuels and “clean coal” technologies. Under the Foodtheme, the authors examine new legislation intended to encourage both “localfood” and “organic food” systems as a special niche for Illinois food growers,

794 Southern Illinois University Law Journal [Vol. 32

2. 35 ILL. COMP. STAT. 200/10–400(b) (2007).

and legislative and judicial developments related to the last operating horsemeat slaughter facility in the United States)Cavel International, Inc. locatedin DeKalb, Illinois.

In Section II the authors discuss other legislative developments relatedto agriculture. The topics are wide-ranging, including livestock andcompanion animals, damages from mine subsidence or oil and gas exploration,regulatory and research initiatives regarding ammonium nitrate (a valuablefertilizer that can be used in bomb making), ATVs, child seat belts in trucks,agriculture in the classroom, municipal annexation agreements, and theEmerald Ash Borer.

In Section III, the authors return to an issue highlighted in the 2005Survey of Illinois Law)immunity from negligence suits as a way ofencouraging rural landowners to make private lands available to members ofthe public for recreational purposes. The authors report on unsuccessful 2007legislative efforts to amend the Illinois Recreation Use Act. The goal ofencouraging landowners to open their lands for a broad set of recreationalactivities, not just hunting and recreational shooting, remains elusive.

In Section IV, the authors offer some concluding thoughts, including anacknowledgment that this survey of new Illinois legislation related toagriculture will have omitted some legislation that others would have included.Such omissions are inevitable given the breadth of agricultural law.

I. SELECTED AGRICULTURAL LAW DEVELOPMENTSADDRESSING CONSERVATION, ENERGY AND FOOD

Among the more significant or controversial developments in agriculturewere initiatives related to conservation, bio-fuels and other alternative energysources, foods which are locally-grown or organic, and the slaughter of horsesfor human consumption. Selected developments are described below.

A. Conservation and Farmland Preservation: Property Tax Assessments,Land Management Practices and Public Projects

In addition to productive farmland, Illinois’ rural areas contain some ofthe state’s most valuable ecosystems, including rare prairies and wetlands. Toassure the protection of limited farmland and unique environmental resourcesfor the economic and social well-being of the citizens of Illinois, it is in thestate’s best interest to effectively conserve and manage these lands.2

2008] Agricultural Law 795

3. See 35 ILL. COMP. STAT. 200/10–110 (2006).4. See 35 ILL. COMP. STAT. 200/10–115 (2006).5. See Wooded Acreage Assessment, available at http://www.revenue.state.il.us/LocalGovernment/

PropertyTax/woodland.pdf (last visited January 16, 2007).6. Id.7. H.B. 95, 94th Gen. Assem., Reg. Sess. (Ill. 2006).8. Id.9. S.B. 17, 95th Gen. Assem., Reg. Sess. (Ill. 2007).10. SB 17 had eighteen co-sponsors in the Senate and nineteen co-sponsors in the House.11. 35 ILL. COMP. STAT. 200/10–400(b) (2007).

1. Conservation-Oriented Tax Assessments)Assessing Woodlands andOther Open Spaces

Economic pressures on rural landowners, potentially exacerbated by theproperty tax system, make conserving farmland, woodlands and other openspace financially challenging. Illinois’ farmland assessment statute attemptsto encourage the preservation of farmland by assessing qualifying land basedon its agricultural value, rather than its higher fair market development value.3

In 2006, the Illinois Department of Revenue implemented Bulletin 810, apublication containing data provided by the Farmland Technical AdvisoryBoard and used by county assessors in implementing the state-mandatedformula for assessing farmland.4 In addition to updating productivity indexesfor various soils, the Farmland Technical Advisory Board recommended thatcounty assessors assure that only land qualifying as “farmland” under thestatute be assessed using the formula.5 As a consequence, the property taxassessment on some wooded acreage unconnected to farming operations wouldincrease to 33 1/3% of its market value rather than the lower farmlandassessment.6 In response, the General Assembly created the Wooded LandAssessment Task Force.7 The Task Force’s purpose was to gather informationand make recommendations to the Governor and General Assembly regardingprocedures and policies for assessment of wooded land and the assessment ofproperty under a certified forestry management program.8

To provide a legislative break to rising non-farm woodland assessmentsand to otherwise alleviate pressures to convert open lands into more intensiveuses, Senator Sullivan introduced Senate Bill 17 on January, 31, 2007.9

Representative Reitz sponsored the bill in the House, which GovernorBlagojevich signed Public Act 95–633 on October 1, 2007.10

Public Act 95–633 created the Conservation Stewardship Law, whichaims to encourage the conservation and management of undeveloped landsthrough tax incentives.11 Under the Conservation Stewardship Law, the owner


12. Id. § 200/10–415(a).13. Id. § 200/10–420(a).14. Id. § 200/10–430(a).15. Id. § 200/10–435(a).16. Id. § 200/10–440.17. See also id. § 200/10–500.18. See 35 ILL. COMP. STAT. 200/10–115 (2005).19. 35 ILL. COMP. STAT. 200/10–505 (2007).20. Id. § 200/10–510 (2007).21. Id.22. For a discussion of the recreational uses of open space within the context of the Illinois Recreational

Use of Land and Water Areas Act, see infra Section III.

of five or more contiguous acres of unimproved land, including woodlands,prairie, wetlands, or other undeveloped land not used for commercial orresidential purposes, may apply for a special valuation of the land bysubmitting a conservation management plan to the Illinois Department ofNatural Resources (“IDNR”).12 Upon IDNR approval of the plan, the landshall be valued at five percent of its fair cash value for property tax purposes.13

The special valuation can be withdrawn if IDNR determines the property nolonger meets the criteria for unimproved land or if the landowner fails torespond to IDNR requests for data regarding the use of the land.14 If thelandowner does not comply with the conservation management plan, thelandowner must pay taxes on the land at the fair cash value.15 For continuitypurposes, the sale of the land does not change its valuation unless the saleresults in a partition of less than five continuous acres or there is a change inthe use of the land.16

Public Act 95–633 also created the Wooded Acreage AssessmentTransition Law17 based on the findings of the Wooded Land Assessment TaskForce.18 The Wooded Acreage Assessment Transition Law applies to parcelsof five or more contiguous wooded acres that do “not qualify as wasteland,cropland, permanent pasture, or other farmland” and are “not managed undera forestry management plan.”19 Wooded land classified as farmland for taxpurposes in 2006 shall be assessed under the Act by multiplying the fair cashvalue of the land by a property tax transition percentage.20 The countyassessment officer will calculate the transition percentage for the property bydividing the property’s 2006 equalized assessed value as farmland by the 2006fair cash value of the property.21

Public Act 95–633 and its property tax implications will have bothpositive and negative effects on the economy, schools and other publicservices, and environment of rural communities. Landowners will have astrong tax incentive to conserve their woodlands, prairies, and wetlands. Thepreserving of undeveloped land has ecological and recreational22 benefits that


23. S.B. 835, introduced February 8, 2007 by Senator Crotty, creates the school facility occupation tax.Under S.B. 835, a county board may impose a sales tax of up to one percent for school facilitypurposes upon the approval of a majority of voters. The Governor vetoed S.B. 835 on August 27, butthe House and Senate voted to overrule his veto, and S.B. 835 became law October 17, 2007. 55 ILL.COMP. STAT. 5/5–1006.7 (2007).

24. See Illinois Department of Natural Resources, Conservation 2000, http://dnr.state.il.us/orep/C2000/(last visited April 8, 2008).

25. Illinois Pub. Act 89–49, originating as S.B. 300, 89th Gen. Assem., Reg. Sess. (Ill. 1995).26. See id.27. 30 ILL. COMP. STAT. 105/6z–32(a) (2007).28. Representatives Froehlich, Verschoore, and Phelps co-sponsored H.B. 1780. Senator Holmes was the

chief sponsor in the Senate, where Senators Garrett and Sieben were co-sponsors.29. 30 ILL. COMP. STAT. 105/5.412 (2007).30. Id. § 105/5.411.31. Id. § 105/6z–32(a).

citizens across the state can enjoy. However, the accompanying decrease inproperty tax revenue will result in reduced funding for public schools andother public services in rural areas. Although counties may impose a sales taxof up to one percent for school facility purposes,23 most local governments willlikely have difficulty making up for the decrease in property tax revenue.

2. Conservation 2000 Programs

Changes to the Conservation 2000 program was another conservation-related development. Focusing on resources on private lands, the legislatureoriginally passed the Conservation 2000 program in 1995 as a comprehensiveeffort to preserve and enhance Illinois’ natural resources through a holistic,long-term approach.24 The original bill25 proposed a six year, $100 millioninitiative. A 1999 amendment extended the Conservation 2000 programthrough 2009.26 The Conservation 2000 Projects Fund and the Conservation2000 Fund contained monies for use by the Illinois Department of NaturalResources, the Illinois Environmental Protection Agency and the IllinoisDepartment of Agriculture “for purposes relating to natural resource protection. . . recreation, tourism, and compatible agricultural and economicdevelopment activities.”27 In order to extend and expand this popular program,Representative Reitz introduced House Bill 1780 on February 23, 2007, whichGovernor Blagojevich signed as Public Act 95–139 on August 13, 2007.28

Public Act 95–139 renamed the Conservation 2000 Projects Fund as thePartners for Conservation Projects Fund29; it also renamed the Conservation2000 Fund as the Partners for Conservation Fund.30 The Act broadens the usesto which the monies in the Funds may be put to include natural resourcerestoration, water quality protection and improvement, and land use andwatershed planning.31 In order to integrate state and federal programs with


32. Id. § 105/6z–32(b).33. See Bryan Endres & D.L. Uchtmann, The Latest Twist on the Illinois Recreational Use of Land and

Water Areas Act: Clamping Down on Landowner Immunities, 29 S. ILL. U. L. J. 579, 580 (2005)(discussing public-private allocation of potential recreational areas in Illinois and noting that Illinoisranks 46th nationally in the percentage of public land).

34. 525 ILL. COMP. STAT. 37/5(a) (2007).35. Id.36. Representative Moffitt introduced H.B. 1638 on February 22, 2007, and the Governor signed the bill

into law August 13, 2007. H.B. 1638 had twelve co-sponsors in the House. Senator Frerichssponsored the bill in the Senate, where there were thirteen co-sponsors.

37. 525 ILL. COMP. STAT. 37/15(c) (2007).

Illinois’ natural resource protection and restoration efforts, the Act allowsmoneys in the Funds to be used for partnering with private landowners, entitiesof local, state, and federal government, and non-profit organizations. The Actalso extends the automatic transfer of money from the General Reserve Fundto the Partners for Conservation Fund through the year 2021.32

The changes to the Conservation 2000 program should increase theeffectiveness of the program and extend its benefits. Expanding the uses of themonies in the Funds, as well as the parties eligible to receive the funding,allows greater access to the program. Private landowners who might not havethe money necessary to restore a wetland on their property may access thePartners for Conservation Fund. As much of Illinois’ natural resources are inprivate ownership,33 amendments to the Conservation 2000 program willenable state agencies and private citizens to better meet conservation goals byworking together.

3. Conservation Land Management Practices)Prescribed Burning

The proper management of open spaces is crucial to their continuedhealth and ecological function. Because most natural areas require periodicburning to remain ecologically healthy, prescribed burning is essential to thecontinued existence of Illinois forests, wetlands and prairies.34 Prescribedburning purges invasive plant population, accelerates nutrient cycling,promotes oak regeneration, reduces the risk and severity of wildfires andimproves the quality of wildlife habitat.35

The Illinois Prescribed Burning Act,36 Public Law 95–108, aims toencourage prescribed burning on private lands by preventing nuisance actionsand establishing proper burning procedures. The Act provides that a properlyconducted prescribed burn shall not be a nuisance as such actions are aproperty right of the landowner as long as natural vegetative fuels are used.37

Prescribed burning, however, is not free from all potential liability. Upon


38. Id. § 37/15(b) (2007).39. Id. § 37/15(a) (2007).40. Pub. Act 95–697 originated as S.B.1327 and was sponsored and filed by Senator Jeffrey M.

Schoenberg.41. 20 ILL. COMP. STAT. 3501/845–5 (2007) (extending debt limits).42. Id. § 3501/801–10(b) (2007) (adding conservation to authorized project).43. Id. § 3501/801–10(ee) (2007) (defining conservation project).44. Id. § 3501/825–12 (2007) (describing financing options).

proof of negligence, the landowner and the person conducting the prescribedburn will be liable for damage or injury caused by the fire or its smoke.38

Under the Act, one must obtain the written permission of the landowner,prepare a written plan for conducting the prescribed burn, and obtain approvalof the plan by a certified prescribed burn manager. The certified burn managermust be on site at the time of the burn. In addition, those conducting theprescribed burn must notify local emergency services and make a reasonableattempt to notify the adjoining property owners.39

Establishing procedures for prescribed burns (in effect, establishing bestmanagement practices) should encourage the proper execution of burns,increase public safety and improve environmental quality across the state.Requiring a certified prescribed burn manager’s approval of a written plan andpresence during the activity is intended to yield the maximum ecologicalbenefit from the burn and to promote safety. More importantly, providing astate-sanctioned means for landowners to burn their open land should decreaseinstances of unapproved, damaging burns with unintended consequences.With increased public awareness of the benefits of burning, more landownersmay turn to prescribed burning as a helpful land management technique.

4. Illinois Finance Authority)Conservation Projects

Public Act 95–69740 amended the Illinois Finance Authority Act toincrease the maximum outstanding principal on bonds.41 With respect to landuse, the Act expanded the definition of “project” to include “conservationproject,”42 defined as any project including the acquisition, construction,rehabilitation, maintenance, operation, or upgrade that is intended to create orexpand open space or to reduce energy usage through efficiency measures.43

Low-interest loans are available to individuals, business entities, privateorganizations and units of local government for conservation projects.44

Conservation projects supported by the Illinois Finance Authority could haveexternalities beneficial to agricultural production or fund conservation-relatedprojects on marginal agricultural land.


45. For general information related to wind power opportunities in Illinois, see Illinois Wind WorkingGroup at http://www.wind.ilstu.edu/ (last visited July 8, 2008). For a national perspective, seegenerally, Jessica A. Shoemaker, Farmer’s Legal Action Group, Farmer’s Guide to Wind Energy:Legal Issues in Farming Wind available at http://www.flaginc.org/topics/pubs/wind/FGWEcomplete.pdf (last visited July 8, 2008).

46. H.B. 1550, 95th Gen. Assem. Reg. Sess. (Ill. 2007). In addition, Pub. Act 95–697 amended theIllinois Finance Authority Act to authorize the Illinois Finance Authority to issue state guarantees tolenders for loans to finance or refinance debts for specialized livestock operations that use anaerobicdigestors to generate electricity. 20 ILL. COMP. STAT. 3501/830–50(a) (2007).

47. See Scott Miller, Lawyer: Wind Farm Presents Hazards, THE PANTAGRAPH (Bloomington) C1 (May23, 2007) (noting noise pollution and “shadow pollution” from the “hypnotizing moving shadowsfrom the turbines”); National Wind Coordinating Committee, Wind Energy Environmental Issues(Jan. 1997) available at http://www.nationalwind.org/publications/wes/wes02.htm (noting communityimpacts of wind generation farms) (last visited July 8, 2008).

B. Alternative Energy: Capturing Illinois’ Natural Resources

Illinois is rich in energy resources, from its windy plains to its abundantcoal resources to its bountiful corn and soybean crops. In order to provideclean, affordable energy to the citizens of Illinois, the state legislature in 2007engaged in a variety of alternative-energy related efforts, with significantaccomplishments in the areas of wind energy, biofuels and “clean coal”technologies. Of course, much work remains for all levels of government, aswell as private citizens, to move toward energy independence and ameaningful reduction of carbon emissions. The following is a brief summaryof the 2007 alternative energy-related legislative actions impacting agriculture.

1. Wind Energy45

a. Zoning

Renewable energy resources generated from local sources such as windpower may benefit the state by reducing the load on the power grid, providingnon-polluting sources of electricity generation, and creating jobs for localindustries that can develop and distribute renewable energy products andtechnologies.46 Of course, as with many new developments, wind generationis not without its critics. Although many arguments in opposition are of the“not in my backyard” genre, such as noise from the turbines, loss of scenicviews, construction impact on roads,47 others raise commercial orenvironmental concerns such as the disruption of established agricultural


48. See National Wind Coordinating Committee, supra note 47 (noting environmental and wildlifeimpacts of wind farms); Nijhuis, Michelle, Selling the Wind, AUDUBON MAGAZINE (Sept.)Oct. 2006)available at http://magazine.audubon.org/features0609/energy.html (noting impact of some windfarms on birds) (last visited July 8, 2008).

49. Representatives Franks and LaVia signed on as co-sponsors, and Senator Righter was the chief Senatesponsor, with Senator Koehler as a co-sponsor.

50. 55 ILL. COMP. STAT. 5/5–12020 (2007).51. Id.52. 66 ILL. COMP. STAT. 5/11–13–26 (2007).53. 55 ILL. COMP. STAT. 5/5–12020 (2007), 66 ILL. COMP. STAT. 5/11–13–26 (2007).54. Standard height and spacing of wind turbines could alleviate some public concerns that wind farms

are an eyesore that detract from the beauty of the landscape. When all of the wind turbines and windfarms within a county conform to a common standard, the regularity of the structure may make themstand out less prominently from the landscape. Holding public hearings will facilitate publicinvolvement in the siting process and prompt siting changes to alleviate some concerns.

55. See McGuire Woods Consulting, Taxation of Wind Farms, available athttp://www.wind.ilstu.edu/presentations/siting%20presentations/barry.pdf (last visited July 8, 2008).

practices (e.g., aerial spraying) or bird migration.48 In order to reap thebenefits of wind energy and minimize the impact on competing uses of theland and airspace, wind turbines must be situated properly. To facilitate theplacement and regulation of wind farms, Representative Rose introduced H.B.620 on February 5, 2007, which the Governor signed into law as Public Act95–203 on August 16, 2007.49

Public Act 95–203 allows local governments to establish standards forwind farms, including the height and number of devices.50 Under the Act,counties may regulate the siting of wind farms and electric-generating winddevices in unincorporated areas of the county.51 A municipality may alsoregulate wind farms and electric-generating wind devices within its zoningjurisdiction, including the surrounding one and a half mile radius ofunincorporated land.52 In addition, counties and municipalities must hold apublic hearing not more than thirty days in advance of any siting decision.53

Although certainly not a panacea for the controversy surrounding wind farmplacement, consistency in wind farm design and mandatory public input insiting decisions may help.54

b. Tax Assessment

Of course, wind farms will sprout from agricultural land only if it makeseconomic sense to devote areas of productive crop land to power generation.One problem confronting wind development opportunities in Illinois is thelack of a standardized property tax assessment for wind turbines and relatedequipment,55 with wind energy projects highly contingent on the county and


56. Id.57. H.B. 4142, in addition to a plethora of other property tax changes, proposed a wind energy property

assessment that would value wind energy devices by subtracting the allowance for physicaldepreciation from the trended real property cost basis. See H.B. 4142, 95th Gen. Assem. Reg. Sess.(Ill. 2007). H.B. 4142 was introduced by Representative Hassert on September 26, 2007 and referredto the Rules Committee. The legislature took no further action on the bill. S.B. 698 proposed to valuewind turbines based on the kilowatt-hour of electricity produced per year, with the wind turbinesystem assessed at 33 1/3% of the cash value. See S.B. 698, 95th Gen. Assem. Reg. Sess. (Ill. 2007).Senate Committee (Revenue) Amendment No. 1 deleted the bill’s original content and replaced itwith a place-holder section to add a new division to the property tax code concerning the valuationof wind-energy production facilities. See Senate Revenue Committee Amendment, March 14, 2007.Although the legislature extended the third reading of the bill two times, it was referred back to theSenate Rules Committee on December 3, 2007 without further action.

58. Pub. Act 95–644 (establishing Wind Energy Property Assessment at 35 ILL. COMP. STAT. 200/10).H.B. 644 passed the house on May 3, 2007. On August 6, 2007, The Senate Revenue Committeeadopted Senate Committee Amendment No. 1, which inserted the wind energy equipment assessmentprovisions. After passing the Senate on August 9, 2007, the House concurred with the Senateamendments and passed the bill the following day. On September 20, 2007 the Governor issued anamendatory veto, which the House and Senate both overruled on October 12, 2007. The wind energyassessment provisions of the Act were not subject to the amendatory veto.

59. 35 ILL. COMP. STAT. 200/10–600 (2007).60. Id.61. Id. § 200/10–620 (2007).62. Id.63. Jesper Michaelsen, Presentation to Illinois Wind Working Group, Dec. 13, 2007 (Peoria, IL),

available at http://www.wind.ilstu.edu/presentations/siting%20presentations/MICHAELSEN.pdf (lastvisited July 8, 2008).

the opinion of the county tax assessor.56 Legislators in the 2007 GeneralAssembly session floated multiple proposals to address this problem andestablish a standard method of assessing wind farms.57

Public Act 95–644,58 among other revenue related items, established astate-wide standard valuation of wind energy equipment of $360,000 perMegawatt in 2007, adjusted for inflation.59 Values may be adjusted fordepreciation based on a twenty-five-year expected life so long as thedepreciated value does not fall below thirty percent of the inflation-adjustedcost basis.60 The owner of the wind energy equipment must retain an Illinoisregistered land surveyor and deliver a plat of the property to the countyassessment officer.61 The property will receive a separate parcel identificationnumber or numbers.62 Due to varying property tax rates by county, the Actdoes not create a uniform property tax for wind energy equipment. Forexample, tax rates in central Illinois may vary between an annual amount of$8,400 per Megawatt (seven percent rate) to $13,200 per Megawatt (greaterthan eleven percent rate).63 Accordingly, additional proposals to furtherstandardize wind farm assessments are likely in future legislative sessions.


64. See Eric Rosenbloom, A Problem With Wind Power, at 3, available athttp://www.aweo.org/ProblemWithWind.pdf (last visited July 8, 2008).

65. See id.66. See id.67. See Don Uchtmann et al., Energy and Agriculture: Legal and Tax Perspectives, at 64–8, available

at http://www.farmdoc.uiuc.edu/farmincome/2007/pdfs/breakout(Uchtmann).pdf (discussing drainageconsiderations and responsibility for infrastructure removal) (last visited July 8, 2008).

68. S.B. 1400, 95th Gen. Assem., Reg. Sess. (Ill. 2007). (Senator Jacobs introduced S.B. 1400 onFebruary 9, 2007, and Senators Raoul, Rutherford, and Haine co-sponsored the bill.)

69. Id. § 30.70. Id. Wind turbines already constructed, under construction or issued a building permit must also

contribute to the fund. Id.71. See Donald L. Uchtmann & A. Bryan Endres, The Revised Illinois Grain Code: Greater Protection

to Farmers and Lenders if a Grain Elevator Fails, AGRIC. L. & TAX BRIEF No. 03–02 (Dec. 2003),available at http://www.farmdoc.uiuc.edu/legal/articles/ALTBs/ALTB_03–02/ALTB_03–02.pdf(describing amendments to the Illinois Grain Insurance Fund) (last visited July 8, 2008).

c. Site Remediation

An often overlooked consideration for wind farm development isrestoration of the land at the end of the turbine life cycle. Most propertyagreements (usually a wind-farm lease or easement) provide for infrastructureremoval and land restoration upon termination of the project. If the originalwind-power company no longer is in operation, however, responsibility forland restoration may fall on the landowner. This is not an insignificantundertaking. A 200–300 foot tower, supporting a wind turbine the size of abus with three 100 to 150 foot rotor blades may weigh over 56 tons and requirea substantial foundation.64 A single wind turbine site may encompass a fourty-two square foot gravel area over a 1,250 ton foundation of reinforcedconcrete.65 Moreover, a wind farm may require as many of fifteen to twentytowers to justify the required transmission infrastructure.66 In addition to landcompaction, the infrastructure may impact surface and subsurface drainage(e.g., drainage tiles).67

Senate Bill 1400,68 as originally introduced, proposed a $10,000 propertytax assessment on each wind turbine in Illinois payable into a fund for thedeconstruction of abandoned wind turbines)the Wind Energy IndemnityFund.69 The assessment obligation would fall on the owner of the windturbine, payable in equal $1000 installments over a period of ten years.70 Thisis similar to the Illinois Grain Insurance Fund, in which sellers of grain (aswell as grain elevators and banks holding warehouse receipts as collateral)remit a per bushel fee to the fund as insurance payable in the event of a grainelevator failure.71 During the legislative process, the wind turbine provisionswere dropped from Senate Bill 1400 and replaced with language relating toannexation agreements between municipalities that border the Mississippi


72. House Amendment No. 1, adopted in Executive Committee by voice vote on May 29, 2007, deletedall wind energy related provisions. House Amendment No. 2 added many of the wind energyproperty tax assessment provisions discussed above in reference to Pub. Act 95–644. HouseAmendment No. 4 replaced the entire contents of the bill with provisions relating to municipalitiesand annexation agreements. House Amendment No. 2 was tabled on August 6, 2007 while HouseAmendment No. 4 passed by voice vote on the same day. On August 8, 2007, the Senate concurredwith House Amendment No. 4 to S.B. 1400. See Bill Status of S.B. 1400, Illinois General Assembly,available at http://www.ilga.gov/legislation/BillStatus.asp?DocNum=1400&GAID=9&DocTypeID=S.&LegID=&SessionID=51&SpecSess=&Session=&GA=95 (last visited July 8, 2008).

73. S.B. 1184, 95th Gen. Assem. Reg. Sess. (Ill. 2007), Senate Floor Amendment No. 3, Article 10.74. See Bill Status of S.B. 1184, Illinois General Assembly, http://www.ilga.gov/legislation/

BillStatus.asp?DocNum=1184&GAID=9&DocTypeID=S.&LegId=29269&SessionID=51&GA=95(last visited July 8, 2008).

75. Surety options could include indemnity bonds, lines of credit, insurance products or even county ortownship legislation to recover costs of land restoration.

76. See Pub. Act 95–99, codified at 110 ILL. COMP. STAT. 520/6.6(d)(6) (2007). (Representative Hoffmanintroduced H.B. 1313 on February 16, 2007, and five representatives co-signed the bill. Senator Hainesponsored the bill in the Senate, and nine senators co-signed the bill. Governor Blagojevich signedthe bill into law as Pub. Act 95–0099 on August 13, 2007.)

77. See http://energybiosciencesinstitute.org/ (describing research activities of the Energy BiosciencesInstitute) (last visited July 8, 2008).

River.72 Senate Floor Amendment No. 3 to another bill, Senate Bill 1184,adopted on May 9, 2007, re-introduced the Wind Energy Indemnity Fund Lawcarved out of Senate Bill 1400.73 Senate Bill 1184, however, died in theHouse.74

Although the subject of much activity, the legislative session failed toresolve the issue of land restoration. As a result, landowners contemplatingwind energy development projects should consider creative contract provisionsto ensure the prompt removal of wind energy infrastructure upondecommissioning.75

2. Biofuels

Although the biofuel industry is growing in Illinois, researching newconversion technologies is necessary for Illinois to remain a leader in the field.In order to advance the development of ethanol technology and strengthen theethanol industry in Illinois, the legislature created the National Corn-to-Ethanol Research Center at Southern Illinois University at Edwardsville.76 Thepurpose of the Center is to conduct research projects, provide training andservices to the biofuel industry, and prepare students to work in the biofuelsindustry. The University of Illinois at Champaign-Urbana also established, incooperation with the University of California, Berkeley and the LawrenceBerkeley National Laboratory, an Energy Biosciences Institute to investigatecellulosic ethanol technologies.77


78. 815 ILL. COMP. STAT. 370/4 et seq. (2007).79. Senator Sullivan introduced S.B. 649 on February 8, 2007. Senator Dahl co-sponsored the bill and

Representative Tracey sponsored the bill in the House with four co-sponsors. The governor signedthe bill into law as Pub. Act 95–381 on August 23, 2007.

80. 815 ILL. COMP. STAT. 370/4.1 (2007).81. See H.B. 2106, 95th Gen. Assem. Reg. Sess. (Ill. 2007). Representative Madigan introduced H.B.

2106 on February 26, 2007. As of this writing there are twenty-two House co-sponsors. SenatorDemuzio sponsored the bill in the Senate along with thirteen co-sponsors.

82. Although low-level ethanol blends (e.g., ten percent ethanol with gasoline) is compatible withstandard storage tanks and gas pumps, E-85 (eighty-five percent ethanol with fifteen percent gasoline)requires special tanks and pumps to prevent corrosion. See U.S. Department of Energy, AlternativeFuels and Data Center, Step-by-Step Process for Converting a Petroleum (Diesel or Gasoline) Systemto an E85 Compatible System, available at http://www.eere.energy.gov/afdc/e85toolkit/converting_petroleum.html (last visited July 8, 2008).

83. See Bill Status of H.B. 2106, available at http://www.ilga.gov/legislation/BillStatus.asp?DocNum=2106&GAID=9&DocTypeID=H.B.&LegId=30953&SessionID=51&GA=95 (last visited July 8,2008).

With respect to biodiesel (a product derived from soybeans or other oilseeds), the legislature amended the Motor Fuel and Petroleum Standards Act78

to require the labeling of gas pumps dispensing biodiesel or biodiesel blends.79

Under the Act, as of July 1, 2008, any retail motor fuel dispensing device thatdispenses a motor fuel containing biodiesel or a biodiesel blend must belabeled as such on the front of the dispenser.80 Each device must be labeledwith a capital letter “B” followed by the numerical value representing thevolume percentage of biodiesel fuel, such as B10 for a ten percent biodieselblend. The purpose of the statute is to assist consumers in making a properfuel choice for their vehicle and establishing a standard that consumers canbecome accustomed with.

To further encourage biofuel production within Illinois, RepresentativeMadigan introduced House Bill 2106,81 proposing substantial financialincentives for the production of ethanol fuels. The proposed law wouldprovide facilities that produce ethanol for gasohol or majority blended ethanolfuel a grant equal to ten cents per gallon of annual production capacity, not toexceed $10,000,000 for each facility. In addition, the statute would providefinancial assistance to local governments and distribution centers for theinstallation of infrastructure for the use of majority blended ethanol andestablish a program to facilitate the transportation of renewable fuels by rail.82

The proposal would also create a program to coordinate renewable fuelresearch and establish a Renewable Fuels Development Program Fund. HouseBill 2106 passed the House on May 1, 2007, but as of this writing, remains inthe Senate Rules Committee awaiting its third reading.83


84. See http://www.futuregenalliance.org/ (describing FutureGen Alliance) (last visited July 8, 2008).“FutureGen is a public-private partnership to design, build, and operate the world's first coal-fueled,near-zero emissions power plant, at an estimated net project cost of US $1.5 billion.” Id.

85. See S.B. 1704, Ill. Gen. Assem. Reg. Sess. (2007).86. See FutureGen Industrial Alliance, Inc., Final Selection Report, Dec. 18, 2007, available at

http://www.futuregenalliance.org/news/fg_final_site_selection_report.pdf (last visited July 8, 2008).87. 20 ILL. COMP. STAT. 1107/20 (2007).88. Id. § 1107/25–1107/30.89. Id. § 1107/35.90. Id. § 1107/40.91. Id. § 1107/43.92. Id. § 1107/5.

3. FutureGen

With significant coal resources and favorable geology, many believe EastCentral Illinois is a suitable place for a near zero emission coalgasification/carbon sequestration power plant. In order to induce theFutureGen Alliance84 to build and operate the first plant of this type in Illinois,the General Assembly proposed significant legislation to provide the Alliancewith liability protection, land use rights, and permitting certainty.85 Public Act95–18, the Clean Coal FutureGen for Illinois Act (FutureGen Act), was asignificant inducement to the eventual selection of Mattoon, Illinois as the sitefor the FutureGen plant.86

For liability purposes, the FutureGen Act transferred title to all futuresequestered gas to the state of Illinois.87 It also required the state to procure aninsurance policy to cover the operators of the plant against any qualified lossstemming from a public liability action and indemnify the operator of theFutureGen site from liability from any public action that might be assertedagainst it.88 The Act requires the Illinois Attorney General to represent theoperators and defend them against any public liability action, unless theAttorney General has a conflict of interest, in which case the State will payFutureGen’s court costs and attorney’s fees.89 Moreover, the Act notes that theState will issue all necessary and appropriate permits and streamline theapplication process to insure timely issuance.90 Finally, the Act providesFutureGen a tax exemption and establishes a financial assistance program forhigh-impact businesses.91

Although the FutureGen Act provided substantial financial and liabilityconcessions to attract the plant, the hope is that the citizens of Illinois will beable to enjoy the benefits of having a clean coal power plant inIllinois)including the economic benefits of a $1.5 billion plant andinfrastructure investment with attendant construction and operating jobs.92

Whether all the funding envisioned for FutureGen actually materializes, and


93. For example, a January 30, 2008 story, available on News-Gazette.com, began as follows:“MATTOON)The proposed $1.8 billion FutureGen clean coal power plant scheduled to be built inMattoon may not be built after all, and politicians are claiming it's a victim of partisan politics.” Seehttp://www.news-gazette.com/news/local/2008/01/30/no_future_for_futuregen (last visited February14, 2008).

94. Pub. Act 095–0145, § 5 (2007).95. Id.96. Id.97. Id.98. See A. Bryan Endres, An Awkward Adolescence in the Organics Industry: Coming to Terms with Big

Organics and Other Legal Challenges for the Industry’s Next Ten Years, 12 DRAKE J. OF AGRIC. L.17, 29–31 (2007) (discussing the development of demand for locally sourced food).

99. See Department for Environment, Food and Rural Affairs (DEFRA), The Validity of Food Miles asan Indicator of Sustainability Development: Final Report, available athttp://statistics.defra.gov.uk/esg/reports/foodmiles/final.pdf (July 2005) (hereinafter DEFRA FoodMiles Study).

100. THE HANDBOOK OF ORGANIC AND FAIR TRADE FOOD MARKETING 47 (Simon Wright and DianeMcCrea, eds. 2007) (citing Soil Association, Organic Market Report 2006).

the extent to which the ambitious project may be modified from the originalplan, is unclear.93

C. Locally Grown and Organic Food: Supporting Farms and Consumers

The market for locally grown and organic food in Illinois is expanding.94

Ninety-five percent of organic food sold in Illinois, however, is grown andprocessed outside of the state, and only 0.2% of Illinois farm sales areagricultural products sold directly for human consumption.95 Within the state,food dollars generally are not spent on Illinois agricultural products and thepotential profits are being exported out of the state to the detriment of Illinois’farming communities.96 With an average traveling distance of one thousandfive hundred miles for food items consumed in Illinois, the dissonancebetween the growing demand for local and organic food and the productssupplied by Illinois agriculture is ripe for resolution.97

Serious concern regarding the distance food travels from farm to fork (or“Food Miles”) is not unique to Illinois. Food miles have been the subject ofintensive debate in sustainability circles for years,98 with the most vigorousconcerns raised in the United Kingdom (UK).99 When asked whether theywould prefer a locally grown conventional product or an imported organicproduct, a clear majority of UK consumers, despite their generally strongsupport for organic food, selected the local, conventional option.100 Theenvironmental, social, and economic burdens associated with transportation


101. Air transport of food products, due to carbon dioxide emissions, has engendered the most criticism.For example, only one percent of food is air freighted in the UK, but it produces eleven percentof thecarbon dioxide emissions attributed to food transportation. See DEFRA Food Miles Study, supra note99, at ii.

102. DEFRA Food Miles Study, supra note 99, at i. On the other hand, avoiding products due to their“mileage” can have devastating impacts on farmers in the developing world. In Kenya, the livelihoodof 150,000 organic farmers is at risk due to a proposed ban on air-freighted organic import to the UK.See TimesOnLine, Organic farmers face ruin as rich nations agonise over food miles, The Times,Aug. 2, 2007. If organic certification is revoked, the market price of Kenyan produce would plummetforcing many farmers to abandon operations. See id.

103. H.B. 1300 had thirty-one co-sponsors in the House and forty-one co-sponsors in the Senate.104. See Pub. Act 95–145 § 5 (2007).105. Id. § 10.106. Id. § 15.107. Press Release, Illinois Dept. of Natural Resources, Gov. Blagojevich Signs Legislation to Expand the

State’s Agricultural Programs, Further Protect Illinois’ Natural Resources (Aug. 14, 2007) (on filewith author), available at http://dnr.state.il.us/pubaffairs/2007/August/signs.html; See also Pub. Act095–0145 § 15.

108. Pub. Act 095–0145 § 10 (2007).

of food, including carbon dioxide emissions,101 air pollution, congestion,accidents, and noise, underscore the potential for locally grown products.102

Seeking to remedy the growing disparity between the supply and demandof locally grown and organic food, Representative Hamos introduced H.B.1300 on February 15, 2007, with Senator Collins sponsoring the Senateversion. After quick passage in the legislature, Governor Blagojevich signedPublic Act 95–145 (Illinois Food, Farms, and Jobs Act) on August, 14,2007.103 The goal of the Illinois Food, Farms, and Jobs Act is to providesupport for local food by capturing in Illinois the greatest portion of foodproduction, processing, storing, and distribution possible.104 To achieve thatgoal, the Act established the Illinois Local and Organic Food and Farm TaskForce.105 The Act requires the Task Force to develop policy and fundingrecommendations for expanding and supporting a state, local and organic foodsystem.106 The Task Force must submit its recommendations to the 2009General Assembly by September 30, 2008. Potential recommendations couldinclude land preservation and acquisition opportunities, training anddevelopment programs for conventional farmers and those planning onentering the industry, financial and technical support to help develop new foodand agriculture related businesses, and expanded development of fresh foodmarkets in underserved communities.107

The Illinois Department of Agriculture will convene the Task Forcecomposed of thirty-two members appointed for two-year terms by theGovernor.108 Members will include one representative each from theDepartments of Agriculture, Commerce and Economic Opportunity, and


109. See Press Release, Illinois Dept. of Natural Resources, supra note 107. See also Pub. Act 095–0145§ 15.

110. Pub. Act 095–0145 § 5 (2007).111. Id.112. Id.113. Id.114. See Food and Agriculture Organization (FAO) of the United Nations, Organic Agriculture and Food

Security, available at ftp://ftp.fao.org/paia/organicag/ofs/OFS-2007-5.pdf (last visited April 8, 2008).115. See Endres, supra note 97, at 30.116. DEFRA, Farming: Policy and Research, available at http://www.defra.gov.uk/farm/organic/

policy/index.htm.117. Id.118. Id.

Human Services, as well as individuals from the agriculture, educational, andfood retail sectors.109

The hoped-for benefits of the Act are extensive. Developing a state-wideinfrastructure to meet the demand for locally grown and organic food withinIllinois may have economic, environmental, health, and security benefits.Capturing food dollars currently exported out of the state may benefit Illinoisfarmers and their communities, creating new jobs and businessopportunities.110 Processing, storing, and distributing locally grown andorganic foods may help to revitalize rural economies and provideentrepreneurial opportunities across the state.111 Facilitating the sale ofdomestically produced food may reduce transportation costs and carbondioxide from fuel emissions. Other environmental benefits hopefully willinclude water quality improvement from the reduced use of fertilizers andpesticides required for organic certification. Improved local food distributionsystems may create new markets in low-income communities where currentlythere is insufficient access to fresh produce.112 Increased availability of freshfruits and vegetables could improve nutrition and potentially reduce obesityin these communities.113 Finally, the threat of bioterrorism has further elevatedthe importance of local food chains. Although the ability of organicallyproduced food to supply all the required calories for a region is open todebate,114 the establishment of an infrastructure supporting locally-grown food,whether organic or conventional, hopefully will enhance food security.115

Similar government initiatives in other jurisdictions appear to have beensuccessful. For example, the United Kingdom’s Department for Environment,Food, and Rural Affairs (DEFRA), in 2002, launched an action plan to developorganic farming and food for England.116 At the time, only thirty percent oforganic products were sourced in the UK.117 DEFRA established an aggressivegoal for seventy percent domestic sourcing by 2010.118 2005 estimatesindicated that approximately sixty-six percent of all organic produce sold in


119. Id.120. Representative Molero introduced H.B. 1711 on February 22, 2007, and added seven co-sponsors

over the next month. Senator Collerton was the chief Senate sponsor, along with five Senate co-sponsors. On May 23, 2007, the day before H.B. 1711 was signed into law, Senator Burzynskiintroduced S.B. 1844, which seeks to further amend the Horse Meat Act by making it unlawful forany person to sell horse meat for animal consumption unless the horse meat is clearly stamped,marked, and described as horse meat for animal consumption. As of this writing, S.B. 1844 is in theSenate Rules committee with no co-sponsors and is unlikely to pass.

121. 225 ILL. COMP. STAT. 635/1.5(a)-(c) (2007).122. Id. § 625/1.5(a).123. Cavel Int’l, Inc. v. Madigan, 500 F.3d 551, 552 (7th Cir. 2007).124. 225 ILL. COMP. STAT. 635/1.5(a) (2007).125. Id. § 635/1.5(b).126. Id. §635/1.5(c).

England was sourced domestically.119 Given Illinois’ comparative advantages(soil, growing climate, transportation infrastructure, knowledgeableconsumers, farmer ingenuity, and university investment in sustainable farmingresearch), expectations are high that the Food, Farms, and Jobs Act willencourage a more self-sufficient and environmentally supportive food supplychain.

D. Horse Slaughter for Human Consumption: Legislation and Litigation

On May 24, 2007, Governor Blagojevich signed Public Act 95–2(originating as H.B. 1711120), which amended the Illinois Horse Meat Act.121

The Amendment prohibits the slaughter of horses in Illinois for humanconsumption.122 The last operating horse meat slaughter facility in the UnitedStates, Cavel International, Inc., was located in DeKalb, Illinois.123

Specifically, the revised statute prohibits “any person to slaughter a horse ifthat person knows or should know that any of the horse meat will be used forhuman consumption.”124 The revised statute also prohibits any person topossess, to import into or export from Illinois, “or to sell, buy, give away,hold, or accept any horse meat if that person knows or should know that thehorse meat will be used for human consumption.”125 A knowing violation ofthe Act constitutes a Class C misdemeanor, punishable by up to 30 days in jailand a $1500 fine.126

The arguments for banning horse slaughter included animal welfareconcerns and the lack of a market in the United States for horse meat forhuman consumption. Representative Molero characterized the slaughter ofhorses for human consumption as a “shameless slaughter of . . . beautifulanimals for the sole purpose of ensuring fine dining in European


127. Press Release, Office of the Governor, Gov. Blagojevich Signs Legislation Banning the Slaughter ofHorses in Ill. for Human Consumption (May 24, 2007) (on file with author), available athttp://www.illinois.gov/PressReleases/ShowPressRelease.cfm?SubjectID=3&RecNum=5995.

128. CAL. PENAL CODE § 598(c) (Deering 2007); MD. ANN. CODE art. 27 § 212 (2007); TEX. AGRIC. CODEANN. §149.002-.003 (Vernon 2007).

129. Brief and Short Appendix of the Animal Welfare Institute as Amicus Curiae Supporting Defendants-Appellees and Affirmance of District Court at 4, Cavel Int’l, Inc. v. Madigan, 500 F.3d 551 (7th Cir.2007) (No. 07–2658), 2007 WL 2426699.

130. Id.131. See Press Release, Office of the Governor, supra note 126.132. Brief and Required Short Appendix of Plaintiff-Appellants at 11; Cavel Int’l, Inc., 500 F.3d 551.133. Brief and Required Short Appendix of Plaintiff-Appellants at 13.134. Cavel Int’l, Inc., 500 F.3d at 552.

restaurants.”127 American culinary habits generally regard the humanconsumption of horse meat as abhorrent or revolting, as evidenced by similarbans on horse slaughter for the purpose of human consumption in three otherstates.128 Humanitarian concerns about the slaughter of horses for their meatstem from opposition to the perceived violent manner of death inslaughterhouses, as well as from emotional attachments that exist betweenhorse lovers and horses. Reports of stolen horses being sold to Cavel worriedlocal horse owners and, if true, were hurting business at a horse rehabilitationcenter near the Cavel plant.129 Horse owners in the DeKalb area supportedH.B. 1711 because the ban on horse slaughter eliminated the temptation tosteal local horses and sell them to Cavel for a profit.130 The Director of theIllinois Department of Agriculture, Charles Hartke, concluded that because nodomestic horse meat market exists, there is no need for horses to beslaughtered for human consumption in Illinois.131 Precisely because of the lackof a domestic horse meat market, Cavel International exported its entire outputto countries such as France, Belgium, and Japan, where horse meat isconsidered a delicacy.132 Illinois’ ban on horse slaughter for humanconsumption responded to public objection to this waning industry that servesonly international markets.

Not surprisingly, Cavel International led the opposition to the Horse MeatAct as amended by H.B. 1711. Opponents of H.B. 1711 contested theoffensiveness of human consumption of horse meat, asserting that it isimproper for the state to legislate against wholesome food based on a passingfancy.133 Until recently, horse meat was an accepted part of the American diet.In his Seventh Circuit opinion, Judge Posner recalled that the Harvard FacultyClub served horse meat steaks until the 1970’s.134 Opponents of H.B. 1711further contended that the use of a horse’s meat after its death is irrelevant tohuman treatment concerns and that disgust over human consumption of horsemeat does not represent any genuine concern over the humane treatment of


135. Brief Amici Curiae of the Horsemen’s Council of Illinois and the Illinois Farm Bureau in Support ofReversal at 7; Cavel Int’l, Inc., 500 F.3d 551.

136. Brief and Required Short Appendix of Plaintiff-Appellants, supra note 129, at 12.137. Id. at 11.138. Dr. Kimberly May, Frequently asked questions about unwanted horses and the AVMA's policy on

horse slaughter, Jan. 24, 2008, available at http://www.avma.org/issues/animal_welfare/unwanted_horses_faq.asp (last visited July 8, 2008).

139. Id.140. R. Scott Nolen, U.S. horse slaughter exports to Mexico increase 312%, Dec. 20, 2007,

http://www.avma.org/onlnews/javma/jan08/x080115a.asp (last visited July 8, 2008).141. Brief Amici Curiae of the Horsemen’s Council of Illinois and the Illinois Farm Bureau in Support of

Reversal, supra note 99, at 7.142. May, supra note 136.143. Brief and Required Short Appendix of Plaintiff-Appellants, supra note 131, at 13.144. Brief and Required Short Appendix of Plaintiff-Appellants, supra note 131, at 11.

animals.135 Moreover, H.B. 1711 was not narrowly tailored to achieve thehumane treatment of animals, as it remains legal under the amended HorseMeat Act to slaughter countless horses for any reason other than the humanconsumption of their meat.136 Opponents of H.B. 1711 also objected to theargument that the method of horse slaughter is inhumane. At the Cavelslaughterhouse, a USDA veterinarian and two or three additional inspectorswere on site at all times to ensure Cavel’s compliance with all federal laws andregulations, including those requiring humane methods of slaughter.137

The American Veterinary Medical Association (AVMA) also opposedthe effect of H.B. 1711. In light of the problem of unwanted horses inAmerica, AVMA noted that the banning of horse slaughter in America couldresult in an increase in horses being transported out of the United States wherethere is no guarantee of humane slaughter.138 The AVMA reported that in2006, only 10,783 horses were transported from the United States to Mexicofor slaughter.139 In 2007, however, Mexico received 44,475 horses from theUnited States for slaughter.140 Moreover, there is little or no regulatoryoversight regarding the humane treatment of horses in Mexico.141 The AVMAalso noted that unwanted horses sold for slaughter may now be neglected,abused, or abandoned by their owners.142 In sum, opponents contended thatH.B. 1711 has no purpose other than shutting down Cavel’s operation inDeKalb and that there is no legitimate state interest to close a viable businesssimply to satisfy the moral sensibilities of a vocal minority.143 The shutdownof the Cavel plant resulted in the loss of over sixty jobs and $20 million inannual revenue, hurting the local economy.144

In response to the enactment of H.B. 1711, Cavel sought a preliminaryinjunction against the enforcement of the revised Act. Judge Kapala of theUnited States District Court for the Northern District of Illinois declined toissue the injunction, holding that Cavel had failed to make a “strong showing”


145. Cavel Int’l Inc. v. Madigan, No. 07C50100 (N.D. Ill 2007).146. 21 U.S.C. § 601 et seq. (2000).147. Cavel Int’l Inc., 500 F.3d at 547.148. Id. at 559.149. Id. at 554.150. Id. at 558.151. Id. at 557.152. Tim Landis, Lost in the fog of rhetoric; Horse slaughter is a point of contention, The State Journal-

Register, December 16, 2007, at 39.153. 76 USLW 3410 (Jan. 18, 2008) (No. 07–962).154. Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326 (5th Cir. 2007), cert. denied,

127 S. Ct. 2443 (2007) (holding that the Federal Meat Inspection Act does not preempt Texas’prohibition on horse meat for human consumption and that the Texas statute did not violate thedormant Commerce Clause). The Texas Agricultural Code forbids the sale of horse meat for humanconsumption, the possession of horse meat with intent to sell it for human consumption, and thetransfer of horse meat to an individual who intends to sell it for human consumption. TEX. AGRIC.CODE ANN. § 149.002-.003 (Vernon 2007).

that H.B. 1711 is unconstitutional.145 On appeal to the United States Court ofAppeals for the Seventh Circuit, Cavel argued the amendment violated thefederal Meat Inspection Act146 and the Commerce Clause of Article, I, Section8 of the United States Constitution.147 The Seventh Circuit (Judge Posner)affirmed the district court’s decision to deny the preliminary injunction.148 TheCourt found no merit to Cavel’s claim that the amendment violates the MeatInspection Act, noting that the federal statute does not preempt state lawsbanning certain types of meat production.149 Furthermore, the Illinois statutedid not violate the Commerce Clause because there is no discrimination infavor of local businesses.150 The Court found the state’s interference withforeign commerce to be minimal in relation to the legitimate state interest ofprolonging the lives of animals the people of the state of Illinois happen tolike.151

Cavel subsequently shut down its operation in DeKalb.152 On January 18,2008, Cavel filed a Petition for Certiorari at the Supreme Court, which theCourt subsequently denied.153 In May, the Court denied a writ of certiorarifrom a Texas slaughterhouse seeking to challenge a similar Texas law banningthe slaughtering of horses for human consumption.154 Given the Court’sdecision in Empacadora, a successful petition is unlikely.

II. OTHER DEVELOPMENTS WITH AN IMPACT ONAGRICULTURAL LAW

Other developments related to agriculture, developments that do not fitinto the broad themes of conservation, energy, and food appearing in SectionI, are described below. The laws are grouped under the topics of Livestock


155. 510 ILL. COMP. STAT. 77/5 et seq. (2007).156. Nickels v. Burnett, 343 Ill. App. 3d 654, 660, 798 N.E.2d 817, 823–4 (2d Dist. 2003) (discussing

purpose of the Livestock Facilities Management Act). See also 510 ILL. COMP. STAT. 77/5 (2007)(listing legislative findings prompting statute).

157. 510 ILL. COMP. STAT. 77/35 (2007) (siting requirements).158. Id. § 77/13 (design standards for non-earthen waste lagoons); Id. § 77/15 (design standards for waste

lagoons).159. Id. § 77/12 (Public Informational Meetings).160. Pub. Act 95–38 originated from H.B. 215, which Representative Sacia introduced on January 8, 2007.

Six representatives co-sponsored the bill in the House, and Senator Sieben sponsored the bill in theSenate, where there were six co-sponsors. The governor signed H.B. 215 into law on August 10, 2007.

161. 510 ILL. COMP. STAT. 77/13(a)(1)(B). A similar amendment applies to solid waste handling facilities.See 510 ILL. COMP. STAT. 77/13(a)(4).

162. Id. § 77/13(a)(1)(B).163. Id.

and Animal Issues; Energy, Chemicals and Fertilizers; Transportation; andOther Developments.

A. Livestock and Animal Issues

1. Livestock

a. Livestock Facilities Management Act Amendment

The Livestock Facilities Management Act (LFMA),155 enacted in 1996to address environmental and land use problems arising from the expansion ofconcentrated animal production facilities, attempts to balance promotion of thelivestock industry with protecting the character of the surrounding communityand environment.156 The LFMA establishes requirements for the siting,157

construction, and operation of livestock management and livestock wastehandling facilities.158 The Act also outlines a process for public informationmeetings prior to the construction of a concentrated animal feedingoperation.159

Public Act 95–38160 amends the LFMA by allowing the owner oroperator of a livestock waste handling facility constructed with concrete anda design capacity of less than 300 animal units to demonstrate to the IllinoisDepartment of Agriculture that a reduced storage volume, but not less thansixty days, is feasible due to the availability of land application areas that canreceive manure at proper agronomic rates.161 The owner or operator may alsopropose another manure disposal method that would allow for a reducedmanure storage design capacity.162 Under the Act, the Illinois Department ofAgriculture must evaluate the proposal and determine whether a reducedmanure storage design capacity is appropriate for the site.163 This amendment


164. See 225 ILL. COMP. STAT. 650/5.2(a) (2007).165. Id. § 650/5.2(b).166. Illinois Meat and Poultry Inspection Act, Pub. Act 95–554 originated from H.B. 1019, which

Representative Reitz introduced on January 8, 2007. Representative Reis co-sponsored the bill, andSenator Sullivan sponsored the bill in the Senate with Senator Althoff as a co-sponsor. GovernorBlagojevich approved the bill on August 30, 2007.

167. 225 ILL. COMP. STAT. 650/5.2(c) (2007).168. Id. § 650/5.2(c)(10) (2007).169. Id. § 650/5.2(d). Facilities slaughtering both livestock and poultry must only test the type of animal

that it slaughters the most frequently, in terms of numbers for E. coli. See id.170. 255 ILL. COMP. STAT. 650/5.2(d)(3) (2007).171. 510 ILL. COMP. STAT. 50/1 (2007). Interestingly, Pub. Act 95–179 made identical changes to the

Illinois Diseased Animals Act. Pub. Act 95–179 originated as S.B. 560, which Senator Sullivanintroduced on February 8, 2007 with Senator Althoff as a co-sponsor. Representative Reitz sponsoredthe bill in the House, and Representatives Black, Phelps, Verschoore, and Sacia signed on as co-sponsors. The governor signed the bill into law on August 14, 2007.

provides flexibility to relatively small livestock operations (less than 300animal units) with ample area for field application of animal waste.

b. Livestock Products and Food Safety

The Illinois Meat and Poultry Inspection Act, inter alia, establishes astate-licensing regime for meat and poultry slaughter and processingoperations in Illinois.164 Type II custom operations slaughter and process meatfrom private individuals for the individual’s personal use and do not slaughteror process meat intended for sale to the public.165 In order to increase foodsafety and prevent the outbreak and spread of disease originating from TypeII operations, Public Act 95–554 establishes food safety and testingrequirements for Type II licensees.166 The Act requires all Type II licenseesto “develop, implement, and maintain a written standard operating procedurefor sanitation,” known as a Sanitation SOP.167 The Illinois Department ofAgriculture must review the adequacy and effectiveness of each licensee’sSanitation SOP to verify conformance with the Act.168 In addition, Public Act95–554 requires Type II licensees that slaughter livestock and/or poultry to testfor E. coli.169 “[Licensees] must collect at least one sample per week, startingthe first full week of operation after June 1 of each year and continue samplingat a minimum of once each week in which the establishment operates untilJune 1 of the following year or until 13 samples have been collected,whichever is sooner.”170

Public Act 95–554 also modifies the Illinois Diseased Animals Act byadding the term “contaminated” to the statute.171 The Act defines“contaminated” as “an animal that has come into contract with a chemical orradiological substance at a level [that] may be considered to be harmful to


172. 510 ILL. COMP. STAT. 50/1 (defining “contamination”).173. 510 ILL. COMP. STAT. 5/30.174. See 510 ILL. COMP. STAT. 30 et seq. (2007).175. Id. § 30/1.5.176. Id. § 30/1.16.177. Id. § 30/5.1.178. Id.

humans or other animals if they come into contact with the contaminatedanimal or consume parts of the contaminated animal.”172 In essence, thisamendment grants explicit authority to the Illinois Department of Agricultureto respond to a bioterrorism or other catastrophic animal-health related eventinvolving chemical or radiological substances, rather than a contagious orinfectious disease. Moreover, the revised Act authorizes the Department toissue area-wide quarantines to prevent the spread of contamination ordisease.173

c. Bovine Brucellosis Eradication

Bovine brucellosis is a highly contagious bacterial disease that causeslate-term abortion and infertility in cattle. In order to curb the spread of thedisease, the General Assembly, in 1959, established the Bovine BrucellosisEradication Act, which contains a process for identifying and quarantininginfected animals.174 To increase certainty in diagnosis and to further theeradication of bovine brucellosis, Public Act 95–93 requires both “a positivereaction to an official test” for bovine brucellosis and a “review by adesignated brucellosis epidemiologist” before being classified as an “infectedanimal” or a “reactor” under the Act.175 A designated brucellosisepidemiologist is “an epidemiologist who has demonstrated the knowledge andability to perform the functions required by the [USDA] and who has beenselected as a designated brucellosis epidemiologist by the State Animal HealthOfficial and the [USDA].”176 Public Act 95–93 further amended the statute tolimit movement of animals with a positive test result.177 Animals testingpositive at a livestock market may be slaughtered or returned to the herd oforigin only by permit and must remain under quarantine for furtherevaluation.178


179. See Pub. Act 95–234 originated as H.B. 9, which Representative Fritchey introduced on December5, 2006 with seventeen House co-sponsors. Senator Haine sponsored the bill in the Senate, wherethere were four additional co-sponsors. On August 17, 2007, the governor signed the bill into law.

180. 725 ILL. COMP. STAT. 5/112A–14(b)(11.5) (2007) (Code of Criminal Procedure of 1963), 750 ILL.COMP. STAT. 60/214(b)(11.5) (2007) (Illinois Domestic Violence Act of 1986).

181. Id.182. See Harold W. Hannah, Tort Liability, ILLINOIS LAW AND AGRIBUSINESS (Cottrell et al, ed. 2001) §

6.17 (discussing tort liability related to dogs); A. Bryan Endres, Tort Liability (Supplement) ILLINOISLAW AND AGRIBUSINESS (Cottrell et al., eds, 2005) (same).

183. Pub. Act 95–550 originated as H.B. 822, which was introduced by Representative Mitchell onFebruary 7, 2007. Representatives Mathias, Froehlich, Boland, and Bellock co-sponsored the bill.Senator Harmon sponsored the bill in the Senate, and Senators Holmes, Sieben, and Dillard co-sponsored the bill. The governor signed the bill into law on August 30, 2007.

184. 510 ILL. COMP. STAT. 5/2.17c (2007).

2. Companion Animals

a. Orders of Protection

Unfortunately, family pets often are the subject of controversy duringdomestic disputes or other criminal activities. In order to grant protection toanimals and prevent emotional damage to owners, Public Act 95–234 expandsthe subject matter that judges may include in an order or protection.179 UnderPublic Act 95–234, a court may use an order of protection to “[g]rant thepetitioner the exclusive care, custody, or control of any animal owned,possessed, leased, kept, or held by the petitioner . . . respondent or a minorchild residing in the residence . . . of either the petitioner or the respondent.”180

A court may also “order the respondent to stay away from the animal andforbid the respondent from taking, transferring, encumbering, concealing,harming, or otherwise disposing of the animal.”181 Public Act 95–234recognizes the importance of pets to individuals, especially in times ofdomestic crisis. Moreover, the expanded orders of protection could decreaseanimal cruelty.

b. Dangerous Dogs

In order to increase public safety, particularly child safety, as well aspromote animal welfare, the legislature has enacted a series of rules relatingto dangerous dogs.182 Public Act 95–0550 contains measures for protecting thepublic from potentially dangerous dogs and provides incentives for dogowners to restrain and control their dogs.183 The Act defines a potentiallydangerous dog as a dog that is unsupervised and found running at large withthree or more other dogs.184 Dogs engaged in legal hunting activities are not


185. Id. § 5/9.186. Id. § 5/11.187. Id.188. 215 ILL. COMP. STAT. 5/801.1 (2007).189. Id. § 5/803.1(b).190. Pub. Act 95–92 originated as H.B. 1004, which Representative Mautino introduced on February 8,

2007. Seven representatives co-sponsored the bill. Senator Dahl sponsored the bill in the Senate,where five senators co-sponsored the bill. Governor Blagojevich signed the bill into law on August13, 2007.

191. 215 ILL. COMP. STAT. 5/803.1(d)-(e).192. Id. § 5/805.1(c).

considered to be running at large if the dog is on land that is open to huntingor if the dog is on land on which the person has obtained permission to hunt.185

Potentially dangerous dogs shall be spayed or neutered and microchippedwithin fourteen days of reclaim.186 Failure to comply with the Act will resultin impoundment of the dog and a $500 fine.187

B. Energy, Chemicals and Fertilizers

1. Mine Subsidence Insurance

In order to protect mining communities in southern Illinois, the IllinoisInsurance Code requires insurers to make mine subsidence insurance coverageavailable for residences, living units and commercial buildings in Illinois.188

The Illinois Mine Subsidence Insurance Fund serves as a reinsurance devicefor losses incurred by private insurers writing mine subsidence insurancepolicies pursuant to the Code.189 Public Act 95–92 authorizes the Fund toreevaluate the amount of reinsurance available.190 The Act requires the Fundto establish the maximum amount of reinsurance available per residence, livingunit, and commercial building.191 The Act also allows the Fund to establish thereinsured loss per residence, commercial building and living unit for allpolicies issued or renewed on or after January 1, 2008.192 These revisions tothe Insurance Code will allow the Fund to update its insurance policies tobetter reflect the current market for subsidence insurance.

2. Oil and Gas Surface Damage

In order to protect surface owners from damage to their property as aresult of oil or gas exploration, encourage operators to conduct their drillingand producing operations with care and facilitate communication betweenlandowner and operator, the General Assembly passed the Drilling Operations


193. Pub. Act 85–1312, 85th Gen. Assem., Reg. Sess., 1988. The Drilling Operations Act applies only tosurface owners who have not consented in writing to the drilling operations. Id.

194. On February 8, 2007, Senator Cullerton introduced S.B. 1041, the parent bill of Pub. Act 95–493.Senator Jones co-sponsored the bill, and Representative Phelps sponsored the bill in the House alongwith Representatives Bradley, Reitz, and Verschoore as co-sponsors. The governor signed the billinto law on August 28, 2007.

195. 765 ILL. COMP. STAT. 530/4(a) (2007).196. Id. § 530/6(a)(1)-(2).197. Id. § 530/6(a)(3).198. Pub. Act 95–219 originated as H.B. 1741, introduced on February 22, 2007 by Representative Eddy.

Nine representatives co-sponsored the bill, an Senator Righter sponsored the bill in the Senate. Thegovernor signed the bill into law on August 16, 2007.

199. 505 ILL. COMP. STAT. 80/12(a) (2007).200. Id. § 80/12(b).201. Id. § 80/12(c).

Act in 1988.193 Public Act 95–493 modifies the notification requirements ofthe Drilling Operations Act and expands operation liability for damage tosurface lands.194 Under the amended Act, the operator must give the surfaceowner a copy of the Drilling Operations Act along with a written notice of theoperator’s intent to commence drilling operations.195 Additionally, Public Act95–493 expands a surface owner’s ability to recover reasonable compensationfrom the operator in the event of damage to the surface owner’s personalproperty during drilling, production or post-production.196 A surface owneralso is entitled to reasonable compensation from the operator for the loss invalue of commercial crop land taken out of production for roads and drillingequipment.197

3. Ammonium Nitrate Purchaser Information

Ammonium nitrate is a valuable fertilizer for farmers, but is an explosiveagent used in bomb making. Because ammonium nitrate is readily availablein bulk, farmers, as well as potential terrorists, have easy access to the product.In order to better monitor purchases of ammonium nitrate, the GeneralAssembly passed House Bill 1741,198 which requires fertilizer distributorsselling fertilizer to a non-registrant provide the Director of Agriculture with asummary report of the tonnage sold to that person.199 The Act further requiressellers of ammonium nitrate to obtain information about the date ofdistribution, the quantity purchased, the purchaser’s name, address, telephonenumber, and driver’s license number.200 Distributors must retain the recordsfor two years and make them available for inspection.201 A retailer ofammonium nitrate may also refuse to sell ammonium nitrate to any personattempting to purchase it in unusual quantities, under suspect patterns, or out


202. Id. § 80/12(b).203. See Pub. Act 95–433, codified at 20 ILL. COMP. STAT. 700/1001 et seq. (2007).204. Id. § 700/2002(a).205. Representative Brauer introduced H.B. 1499, the parent bill of Pub. Act 95–575, on February 21,

2007. Senator Bomke was the chief Senate sponsor. Governor Blagojevich signed the bill into lawon August 31, 2007.

206. 625 ILL. COMP. STAT. 5/11–1426(a-1) (2007).207. Id.

of season.202 In sum, Public Act 95–0219 will continue to grant farmersnecessary access to ammonium nitrate while providing law enforcement toolsto track potentially dangerous purchases.

4. Research Grants for the Development of Inert Anhydrous Ammonia

Although primarily used as a fertilizer, anhydrous ammonia also is animportant ingredient for the production of methamphetamine. In order tocurtail the use of anhydrous ammonia for methamphetamine production, theGeneral Assembly passed Senate Bill 1665, amending the TechnologyAdvancement and Development Act (TADA).203 The Act authorizes grantmoney, allocated under the TADA, to research and test products that renderanhydrous ammonia inert in the production of methamphetamine.204

Modifying anhydrous ammonia to prevent conversion into methamphetaminewill allow farmers to continue using the valuable input without fear of theftand dangerous chemical releases related to production and use ofmethamphetamine. Moreover, this may lead to a decrease in the availabilityof the dangerous drug.

C. Transportation

1. ATVs on the Road

ATVs are a popular form of outdoor recreation, as well as a mode oftransportation across rural land. Until recently, operating an ATV on a publicroadway was illegal, inconveniencing rural landowners who used ATVs forwork purposes. Public Act 95–575 makes an exception for farmers.205 TheAct amended the Illinois Vehicle Code to allow a person to operate an ATVon a country or township roadway for the purpose of conducing farmingoperations and when traveling to and from the home, farm, farm buildings, andany nearby or adjacent farm.206 ATVs operating on a country or townshiproadway at any time between one-half hour before sunset and one-half hourafter sunrise must be equipped with lighted head lamps and tail lamps.207


208. Pub. Act 95–254 originated as S.B. 71, which Senator Cullerton introduced on January 31, 2007.Senators Silverstein, Collins, and Demuzio co-sponsored the bill. Representative D’Amico sponsoredthe bill in the House, and Representatives Crespo, Lyons, Joyce, and Kosel co-sponsored the bill. Thegovernor signed the bill into law on August 17, 2007.

209. 625 ILL. COMP. STAT. 25/4 (2007).210. On February 8, 2007, Representative Myers introduced H.B. 1024, the parent bill of Pub. Act 95–94.

Six representatives co-sponsored the bill, and Senator Sullivan sponsored the bill in the Senate, wherethere were three more co-sponsors. On August 13, 2007, Governor Blagojevich signed the bill intolaw, codified at 30 ILL. COMP. STAT. 105/5.675 (2007). For additional implementation information,see Illinois Agricultural Association, Get Your Ag License Plate, Sept. 6, 2007, available athttp://www.ilfb.org/viewdocument.asp?did=13961&PrinterFriendly=true.

211. 625 ILL. COMP. STAT. 5/3–664(a) (2007).212. Id. § 5/3–664(c).213. Id. § 5/3–664(d).

2. Child Seat Belts in Trucks

In order to protect children and encourage public safety, the GeneralAssembly passed Senate Bill 71, amending the Child Passenger ProtectionAct.208 The amendment requires persons transporting a child less than eightyears old in a truck or truck tractor equipped with seat safety belts to properlysecure the child in an appropriate child restraint system.209 In addition, theamendment removed the liability protection previously afforded to individualstransporting other’s children when the child’s parent or legal guardian did notprovide a child restraint system. In sum, the amendments provided by PublicAct 95–254 eliminated any exceptions to child restrain devices whentransporting children less than eight years old.

D. Other Interesting Developments

1. Agriculture in the Classroom

In order to facilitate quality agriculture education in Illinois, the GeneralAssembly created the Agriculture in the Classroom Fund.210 To raise moneyfor the Fund, the General assembly authorized an Agriculture in the Classroomlicense plate program.211 For each plate issued under the program, the Fundwill receive $25, as well as $25 for each registration renewal period.212 TheIllinois Agricultural Association Foundation, a charitable non-profitorganization, will use the money from the Fund to provide grants in supportof Agriculture in the Classroom programming for public and private schoolsin Illinois.213


214. Representative Pritchard introduced H.B. 3597, the parent bill of Pub. Act 95–175, on February 27,2007, and Representative Wait co-sponsored the bill. Senator Burzynski sponsored the bill in theSenate with Senator Althoff as a co-sponsor. The governor signed the bill into law on August 14,2007.

215. 55 ILL. COMP. STAT. 5/5–1129 (2007).216. 65 ILL. COMP. STAT. 5/11–15.1–2.1(c) (2007).217. Id.218. Id. § 5/11–15.1–2.1(d).219. Senator Dillard introduced S.B. 550, the parent bill of Pub. Act 95–309, on February 8, 2007, and

Senators Millner, Kotowski, and Althoff co-sponsored the bill. Representative Mathias sponsored thebill in the House, with Representative Pihos as a co-sponsor. The governor signed the bill into lawon August 20, 2007, codified at 505 ILL. COMP. STAT. 90/35 (2007).

220. 505 ILL. COMP. STAT. 90/35 (2007).

2. Annexation Agreements

In order to facilitate the growth of rural communities and resolve disputesbetween county boards and municipalities relating to annexation agreements,the General Assembly enacted H.B. 3597, amending the Counties Code.214 Asamended, the Counties Code authorizes boards of certain counties to retainjurisdiction over land that is the subject of a municipal annexation agreementif the land is located more than one and a half miles from the corporateboundaries of the municipality.215 Specifically, the Act provides that propertylocated in Boone, DeKalb, Grundy, Kankakee, Kendall, LaSalle, Ogle orWinnebago County that is the subject of an annexation agreement, and locatedwithin one and a half miles of the corporate boundaries of a municipality, issubject to ordinances, control and jurisdiction of the annexing municipality.216

On the other hand, if the property is located more than 1.5 miles from thecorporate boundary, the county may retain jurisdiction by a vote of two-thirdsof its members.217 The amended Code further provides that if the county boardoriginally retains jurisdiction, the annexing municipality may file a request fortransfer of jurisdiction with the county board, subject to the county board’smajority vote.218

3. Pest Control and the Emerald Ash Borer

In order to prevent the introduction of invasive species, including theEmerald Ash Borer, the General Assembly amended the Insect Pest and PlantDisease Act.219 One vector of invasive species is through transported goods,such as firewood. Accordingly, the amended Act requires the Department ofAgriculture, in collaboration with Department of Natural Resources, topromulgate rules concerning the control of firewood importation with specialattention to controlling the infestation of insect pests.220


221. Senator Schoenberg introduced S.B. 1617, the parent bill of Pub. Act 95–588, on February 9, 2007.Six Senators co-sponsored the bill. Representative Coulson sponsored the bill in the House, alongwith eight co-sponsors. Governor Blagojevich signed the bill into law on September 4, 2007.

222. 20 ILL. COMP. STAT. 3501/825–90(a) (2007).223. Id. § 3501/825–90(c)–(d).224. Id. § 3501/825–90(e). Under these agreements, the Department can provide compensation or

financial assistance to the unit of local government for its costs. Id.225. 745 ILL. COMP. STAT. 65/1–65/7 (2006). The act was amended by Pub. Act 94–625, effective August

18, 2005, to (a) clarify that landowners may limit access to their property to only selected individualswhile maintaining immunity protection under the Act., (b) exclude residential buildings from liabilityprotection by changing the definition of “land” to exclude residential buildings, and (c) narrow thedefinition of “Recreational or Conservation Purpose” to include only “hunting or recreationalshooting” as recreational activities that would provide landowners’ immunity. See generally A. BryanEndres and Donald L. Uchtmann, Survey of Illinois Law: The Latest Twist on the Illinois RecreationalUse of Land and Water Areas Act: Clamping down on Landowner Immunities, 29 S. ILL. U. L. J. 579(2005). The authors observe that landowners may enjoy immunity from negligence-based premisesliability under other laws, e.g., laws limiting liability for injury while using snowmobiles (625 ILL.COMP. STAT. 40/5–1) or ATVs (625 ILL. COMP. STAT. 5/11–1427(g)). Such other laws, however, arebeyond the scope of this discussion.

In order to protect further Illinois’ native ash trees from the blight of theemerald ash borer, the General Assembly established the Emerald Ash BorerRevolving Loan Program.221 The Program will provide low- or zero-interestloans to units of local government for the replanting of trees on public landsthat are within the Emerald Ash Borer quarantine area.222 The loan amountmay not exceed $5,000,000 to any one unit of local government and any loanmay not exceed the moneys that the unit of local government dedicates for thereforestation project for which the loan is made.223 In addition, the Departmentof Agriculture may enter into agreements with a unit of local government toassist the Department in carrying out its duties in a quarantined area, includingthe transportation, processing and disposal of diseased material.224

III. SOME UNFINISHED BUSINESS)REPAIRING THE ILLINOISRECREATIONAL USE ACT

Under the 2005 amendments to the Illinois Recreational Use of Land andWater Areas Act (“Illinois Recreational Use Act”), effective August 18, 2005,landowners who selectively allow others on their lands at no charge to hunt orengage in recreational shooting receive protection from negligence-basedpremises liability.225 However, landowners still remain potentially liable fornegligence-based premises liability if the injured entrant was on the


226. 745 ILL. COMP. STAT. 65/1–65/7 (2006). Also, the authors observe that if landowners previouslyopened their lands to the general public for non-hunting and non-shooting recreational activity,thereby bringing themselves within the protection of the act as interpreted by the Illinois SupremeCourt in Hall v. Henn, 208 Ill. 2d 325, 802 N.E.2d 797 (Ill. 2003), the liability risk of theselandowners actually increased because of the 2005 amendments. See Endres & Uchtmann, supra note223, at 601.

227. Endres & Uchtmann, supra note 223, at 599.228. Endres & Uchtmann, supra note 223, at 603.229. See State of Illinois Recreational Use of Leased Land Act, 745 ILL. COMP. STAT. 67/1, enacted by

Pub. Act 95–0603, effective September 11, 2007.230. Interestingly, many bills were introduced that relate to hunting in one way or another. Here is a

partial list of bills that became law during this legislative session:• H.B. 320)Deer Hunting Time. H.B. 320, codified as Pub. Act 95–289, amends the Wildlife

Code by extending the daily period for deer hunting to one half hour after sunset.• S.B. 201, codified as Pub. Act 95–0013, amends the Wildlife Code by creating a special two-day

youth-only deer hunting season between September 1 and October 31 and prohibits loaning or

landowner’s property to fish or hike or engage in most other recreationalactivities.226

In an earlier article, the authors invited the Illinois General Assembly toexpand, not limit, the range of activities meeting the Recreational Use Act’sdefinition of “Recreational or Conservation Purpose” and thereby encouragemore landowners to make their private lands available to members of thepublic for recreational purposes at no charge.227 More to the point, the authorssuggested that the preferred approach would be to re-instate a generaldefinition for “Recreational or Conservation Purpose” rather than adopting a“listing” approach. The authors reasoned that this preferred approach wouldavoid “the difficult and never-ending challenge of legislatively developing alist of specific activities that constitute recreational and conservation useworthy of the Act’s support.”228

In adopting S.B. 333, codified as Public Act 95–63, the GeneralAssembly seemed to follow the author’s suggested approach, albeit in adifferent but parallel context.229 In this new Act, applicable only tolandowners who lease land to the Illinois Department of Natural Resources,“Recreational use” is defined to mean “any activity undertaken forconservation, resource management, exercise, or recreation on leasedland”)the broad definition approach the authors believe should be adopted for“Recreational or Conservation Purpose” in the Recreational Use Act.Regrettably, the legislature has yet to re-instate a “broad definition” approachin the Recreational Use Act. This leaves the “listing approach” in use bydefault)and with a very limited list, hunting and recreational shooting, that ishard to defend from a public policy standpoint.

The authors acknowledge that hunting is one very popular recreationalactivity on open space land,230 but the authors believe that other recreational


transferring to another person any license, permit, or tag issued under the Wildlife Code.• S.B. 216)Crossbow Hunting. S.B. 216, codified as Pub. Act 95–329, amends the Wildlife Code

by permitting a person age sixty-two or older to use a crossbow to take deer without a permit.• S.B. 498)Hunting Habitat Management. S.B. 498, codified as Pub. Act 95–118, amends the

Illinois Hunting Heritage Protection Act to provide that Department of Natural Resources landmanagement decisions and actions may not, to the greatest practical extent, result in any net lossof habitat available for hunting opportunities on Department-managed lands.

• H.B. 201)Remote Weapon Operation Ban. H.B. 201, codified as Pub. Act 95–283, amends theWildlife Code by prohibiting computer-assisted remote hunting.

231. Based on the 2007 work of colleagues within the Illinois State Bar Association’s Agricultural LawSection and Civil Practice Section, the authors recommend the following definition of “recreationaland conservation purpose” for consideration: "Conservation, resource management, exercise,education and outdoor sports, as well as the practice, instruction or viewing of said activities."

232. On January 19, 2007, Representative Black attempted to re-instate the broad definition approach byintroducing H.B. 29. H.B. 29 would have amended the Illinois Recreational Use Act by defining“recreational and conservation purpose” to be “any activity undertaken for conservation, resourcemanagement, exercise, education, relaxation, or pleasure on land owned by another.” Severalamendments altered the proposed legislation which was referred to the Rules Committee onDecember 3, 2007.

233. Food, Conservation and Energy Act of 2008, Pub. Law No. 110–246.

activities requiring access to open space (e.g., hiking, fishing, bird watching,etc.) are equally valuable to Illinois citizens and worthy of similar support.The authors continue to urge the Illinois General Assembly to substitute abroad definition for “recreational or conservation purpose” for the current listof hunting and recreational shooting as the preferred way to further encouragelandowners to make private lands available to the public, at no charge, forrecreational purposes.231

In the meantime, efforts continue at least to expand the list. For example,on January 9, 2008, Representative William B. Black introduced H.B. 4296into the 95th General Assembly. H.B. 4296 enlarges the definition of"recreational or conservation purpose" to include “hunting, or recreationalshooting, hiking, operation of an off-highway vehicle, rock climbing, trapping,horseback riding of the entrant's own horse or horses, fishing, swimming,boating, camping, picnicking, water or snow skiing, sledding, snowmobiling,an activity with an educational or conservation purpose, or a combinationthereof . . . .”232 The authors are encouraged by the continued efforts of manylegislators and policy advocates to amend the Recreational Use Act and hopethe General Assembly will resolve the issue in its next legislative session.

IV. CONCLUDING THOUGHTS

National agriculture-related issues, such as a new farm bill233 (with itspotential impact on traditional farm commodity programs) and passage of the


234. See Pub. Law No. 110–114, 121 Stat. 1041 (2007).235. Illinois Recreational Use of Land and Water Areas Act, 745 ILL. COMP. STAT. 65/1 et seq. (2006).236. The General Assembly did pass S.B. 835, sponsored by Senator Jacobs and Representative

Verschoore, which was signed into law on October 17, 2007, as Pub. Act 95–675. This bill providesfor the potential funding of schools with a county sales tax of up to a one percent. Food and drugsales are exempt from the tax as are all existing agricultural sales tax exemptions. Tax proceeds canbe used for new construction or remodeling of school facilities. However, the General Assembly wasagain unable to make progress on comprehensive school funding reform.

Water Resources Development Act of 2007234 (with its potential for rebuildinglocks on Illinois waterways), have been prominent among the agriculturalissues of 2007. Nevertheless, legislation adopted by the Illinois GeneralAssembly during 2007 is also important. This article has described much ofthat legislation.

In Section I the authors discussed new Illinois legislation under threebroad themes: Conservation, Energy, and Food. In Section II the authorsnoted other Illinois legislative developments related to agriculture)legislationtouching on a wide range of topics. In Section III, the authors reported onunsuccessful 2007 legislative efforts to amend the Illinois Recreation UseAct.235

Of course, the inability of the General Assembly to fix the RecreationalUse Act was not the only item of unfinished business in 2007. For example,the inability (as of this writing) of the General Assembly to pass a capitalbudget that would address road, bridge and other infrastructure needs in ruralIllinois or to substantially address school funding issues236 remains elusive andof significant concern to many.

In closing, the authors note the breadth of agricultural law in this stateand acknowledge that this survey of new Illinois legislation has undoubtedlyomitted some developments that others would have included. Such omissionsare inevitable given the potential scope and importance of agriculture toIllinois.

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